On The Judicial Application Of "Obvious Improperness"

With "obvious improperness" added into Chinese Administrative Litigation Law,the people’s court has a new path to review the administrative discretion.But as an uncertain legal concept,the legislature and the judiciary didn’t state the meaning and standard of "obvious improperness".Its specific meaning and standard need the people’s court to clarify in administrative judicial practice.Although the meaning of "obvious improperness" is not clear,we can find that the direct cause of "obvious improperness" added into Chinese Administrative Litigation Law is the absence of the function of "abuse of authority" by looking for the legislative intent of "obvious improperness".Commonly,"abuse of authority" is connected with subjective fault,so it has not fully play the role of reviewing administrative discretion.To strengthen the People ’s Court’s review of administrative discretion,all walks of life appeal that "abuse of authority" should be replaced by"obvious improperness of discretion" which is not connected with subjective fault.Before the Administrative Procedure Law taking effect,some scholars worry that"obvious improperness" will be shelved like "abuse of authority".Because China’s courts have a serious tendency of law doctrine according to experience.Once the law doesn’t provide the definite meaning of a certain provision,the court will tend to seek a more affirmative one instead of the uncertain one.The fact of the widely application of "obvious improperness" in the administrative trial practice has proved that scholar’s worry is superfluous.Both of the scholars and legal practitioners pay attention to "obvious improperness" after it added into Chinese Administrative Litigation Law.Most of existing research focus on the way to identify the standard of "obvious improperness".But there are few studies on the application of "obvious improperness"in administrative trial practice.Through analyzing cases using "obvious improperness" as the basis of revoked judgement,it can be found that "obvious improperness" mainly perform in five situation:double identification,instead of other reasons,inevitable results,composite results and others.By the analysis of the application situation of "obvious improperness",the author try to put forward the correct path for people’s court to apply "obvious improperness" in administrative trial practice:1."Obvious improperness" only applies to administrative discretion;2."Obvious improperness" is not only juxtaposed with other reasons,but also has cross relationship with them;3.As the result of the behavior in previous stage,"obvious improperness" should be absorbed by other reasons.